The factual background
5 A statement of facts was tendered by the Crown without objection. It is agreed that it provides the factual background against which I should proceed to sentence each of the offenders, and I have drawn heavily upon it for that purpose.
6 The fatal incident occurred at about 2 am on New Years Day in Amelia Way, Bidwill. During the course of the evening residents in the street were celebrating the occasion by having a barbecue and calling into one another's homes for a drink.
7 The deceased's de facto partner, Narelle Morris, lived at 3 Amelia Way with her daughter, Jamie-Lee, and her son, Stephen. At the time Ms Morris and the deceased were living apart because the deceased was the subject of a court order which prohibited him from entering her premises. Ms Morris' movements were also restricted because at the time she was the subject of a Home Detention Order in respect of traffic offences which she had committed. The deceased, who was 38 at the time of his death, was living with a man named Chrissy Patiole at 87 Chestnut Crescent, Bidwill. The deceased was 175 cm tall and weighed 112 kg.
8 Notwithstanding the court order to which I have just referred, the deceased went to 3 Amelia Way in order to spend New Years Eve with Ms Morris. That night he and Ms Morris were also responsible for looking after her 16 year old niece, Danielle Porter.
9 As the night progressed various people, including the offender JM, called in to 3 Amelia Way. During the course of the evening it was realised that Danielle was missing. Shortly after midnight the deceased discovered her in the company of a young man known as Midge. The deceased formed the view that the young girl and Midge had been involved in some kind of misbehaviour. He escorted them home from the location at which he had found them. On the trip back the deceased slapped Midge across the face. That incident caused Midge to run back home.
10 When he arrived outside the premises at 11 Amelia Way the deceased upbraided Midge in a loud voice. His actions prompted a man named Shawn Douglass to come out of that house. Douglass became involved in an argument with the deceased during the course of which the deceased punched him to the mouth. The deceased then walked back to Ms Morris' premises. He remained there drinking for some time before deciding to return to the premises at 11 Amelia Way. He told other people that he was going there in order to apologise to either Douglass or to Midge's aunt for his behaviour.
11 The deceased then picked up a bottle of Dimple whisky and walked back up to 11 Amelia Way. The offender Clay was in the front yard when he arrived there. Clay became involved in an altercation with the deceased about the deceased having assaulted Douglass. During the course of the argument, Clay punched the deceased to the head. Shortly thereafter the offenders Lonsdale and JM, together with Remo-Wetere, left the premises at 14 Amelia Way where they had been attending a party hosted by Amy Tenaihi. They also became involved with the deceased and a brawl involving a large number of other people then ensued.
12 The offender Lonsdale was armed with a mattock handle which was about a metre in length. At some stage the deceased fell to the ground whereupon the offender Lonsdale struck him with the mattock handle. Whilst the deceased was still on the ground he was kicked and punched by the offenders Lonsdale and JM, as well as by Remo-Wetere. Clay, Remo-Wetere and JM were all workmates. However Lonsdale did not know any of the others and nor was he known to any of them.
13 The offender Clay continued to lend his support to the enterprise by not leaving the scene and by remaining in close proximity to the deceased as he was being kicked and punched.
14 As a result of the incident the deceased suffered bruising, fractured ribs and a ruptured spleen. He returned to Ms Morris' house after the incident. Police arrived there shortly thereafter, as did an ambulance. However the deceased would not consent to being examined and also refused to be taken to hospital. He remained at 3 Amelia Way resting on a bed. He went to the toilet at about 8 am the same morning whereupon he had a cardiac arrest.
15 The deceased was then taken to Mt Druitt Hospital where staff commenced resuscitation. From there he was taken to Westmead Hospital where doctors removed his ruptured spleen. He was placed on a life support system on which he remained until he died, on 3 January 2005.
16 At post-mortem it was ascertained that the deceased had died from hypoxic encephalopathy, which involves the brain being starved of oxygen. That in turn was caused by the cardiac arrest which followed the rupture of the spleen. The pathologist who performed the post-mortem, Dr Little, provided a report in which she stated that the spleen is a fairly soft organ which has a fairly firm skin or capsular surface. She explained that when the spleen is damaged, the inner part tends to get damaged more easily than the covering. She said that the interior of the spleen has a lot of blood vessels which bleed when ruptured. Eventually, through the accumulation of blood, the outer skin will stretch and rupture. According to Dr Little when the spleen ruptures, there is a large haemorrhage into the abdominal cavity. In the present case it caused the deceased to have a cardiac arrest. Dr Little opined that because the deceased's heart was not beating, his brain was not getting any oxygen and that as a result, he suffered massive brain damage which led to his death.
17 Dr Little also discovered that the ribs of the deceased (which were positioned over, or adjacent to, the spleen) were fractured. In her opinion the injuries to the ribs and underlying spleen were consistent with having been caused by blows with the mattock handle.
18 According to the Crown, the substantial and operating cause of death were the blows inflicted by the offender Lonsdale which caused the spleen to bleed and then rupture. The fact that the deceased refused medical assistance was not, according to the Crown, an intervening act sufficient to relieve the offenders Clay and Lonsdale of liability for the death of the deceased. Nonetheless the Crown concedes that it is possible that the deceased would not have died if he had accepted medical assistance. However no-one, including the deceased, was aware at the time of the seriousness of the injuries which he had sustained.
19 There is some additional material which is, by reason of its nature, admissible only against the particular offender in question. I will refer to that evidence concerning each offender in turn.
20 The offender Clay was interviewed by police. In that interview he maintained that at the time of the incident he was well affected by alcohol. Dr Starmer, a pharmacologist, was provided with a history of the amount of alcohol consumed by the offender that evening. Based on that history, Dr Starmer estimated that his blood alcohol concentration would have been in excess of 0.440g/100ml at the time of the offence. According to Dr Starmer such a reading is close to the "lethal level for tolerant individuals".
21 The offender admitted having been in a fight with the deceased but maintained that he had not killed him. He said that the fight had begun because of the way in which the deceased had treated the teenagers and in particular because he had punched one of them. He also maintained that the deceased had come at him and had struck him. He said that he had then hit him back. He said that the deceased had landed on the ground. The offender said that he [Clay] had then got hit with a baseball bat as a result of which he had suffered facial injuries. However I was informed by Mr Ramage QC, who appeared on behalf of the offender, that he would not be raising any issue of self-defence in these proceedings.
22 The offender Lonsdale provided a witness statement in which he gave his version of the events of the evening in question. He said that he had attended a party at the home of his friend, Ms Tenaihi and that he had got "pretty drunk". He said that a fight had broken out outside her place and that a number of people, who were armed with bats, had been involved in it. He maintained that it was in that context that he had grabbed a bat from Ms Tenaihi's house in order to protect himself. He said that he had swung the bat at various people whom, he asserted, had been attacking the deceased. He did not at any stage however mention that he himself had assaulted the deceased. Moreover, the offender Lonsdale maintained that he had been attacked the following day in his own home. That assault had been apparently perpetrated by persons acting in retaliation for the events of the previous evening.
23 A woman named Cheryl Archer, who had also been a guest at Ms Tenaihi's party, provided a statement to police. She too admitted having had consumed a considerable amount of alcohol. She told police that the offender Lonsdale, had come to her house some time after the incident carrying a mattock handle. She heard him say: "I hit some cunt in the back of the head. And I fully cut sick. …I was just swinging the bat around and hitting everyone…Look at me no blood on me."
24 She said that she then saw him change his clothes. He told her "If I change my clothes and scruff my hair, they won't recognise me". She also saw him conceal the mattock handle under his clothing.
25 Later Ms Archer followed the offender Lonsdale as he returned to Ms Tenaihi's house. When he arrived there, Ms Tenaihi took the bat from him. Ms Archer observed that the offender and Ms Tenaihi were cuddling each other and that the offender was crying. Ms Archer heard him say to Ms Tenaihi, "I did it for you, I did for the family and my girl". Ms Tenaihi replied, "What do you mean, what are talking about?" (I interpolate to observe that it is accepted by Mr Martin, who appeared for this offender, that he had no such motivation and that I should disregard his comments in that respect. Mr Martin did however draw attention to the oddity of his client's remarks as being indicative of his disturbed state of mind at the time. Nor did this offender seek to raise any issue of self-defence for the purposes of these proceedings).
26 The offender JM was also interviewed by police. He confirmed that he had gone to the party at Ms Tenaihi's house with his friends Clay and Remo-Wetere. He too had consumed a reasonable amount of alcohol although he maintained that he was not intoxicated. He said that he recalled a fight had broken out which involved the deceased. He said that he could not remember anything after that, although he did say that he observed the offender Lonsdale strike the deceased with a lump of wood, which apparently caused him to fall to the ground.
27 The Crown concedes that proof of its case would have encountered significant obstacles had the matter proceeded to trial. First, the only lighting available at the time of the incident to enable witnesses to make their observations was street lighting. Secondly, there were a large number of witnesses and most of them were very highly affected by intoxicating liquor and, in some instances, by illicit substances as well.
28 In that context I have been provided with a statement from Dr Perl, a forensic pharmacologist. Based on the histories presented to her of the amount of alcohol consumed by the various witnesses, it is her opinion that at least four of the main witnesses had blood alcohol concentration levels of at least 0.400g/100 ml whilst two of them had readings which were considerably higher than that level. In those circumstances it is hardly surprising that Dr Perl formed the opinion that the memories of a number of the key witnesses would have been "severely impaired and unreliable". A similar observation could be made about the capacity of those witnesses to have accurately observed the incident in the first place. Furthermore, the reliability of a number of the witnesses would have been further affected by their consumption of what were, in some instances, very substantial quantities of marijuana and other illicit drugs. It was in that context that the Crown Prosecutor observed, somewhat graphically but nonetheless accurately, that the presentation of the Crown case would have given rise to a "factual nightmare".
29 Unsurprisingly, the various eyewitness accounts vary very considerably. Most notably, whilst some of them indicated that the deceased had fallen to the ground after having being struck to the back of the head by the offender Lonsdale, others asserted that it was a punch from the offender Clay which caused the deceased to fall to the ground. Whilst that issue cannot be satisfactorily resolved, it is nonetheless clear that the deceased was hit, punched and kicked after he fell to the ground.
30 It may be observed that the statement of facts has been drafted with some care. It is also apparent that there are some gaps in the narrative. That is perhaps understandable given that there is considerable confusion as to precisely what occurred. Nonetheless, I am constrained to proceed in accordance with the facts which have been agreed and bearing in mind the offences to which the various offenders have pleaded guilty.
31 I have received victim impact statements from Ms Morris, the deceased's partner of 22 years, his daughter Jamie Lee Matthews, (whom as I have said was an eyewitness to the fatal incident) and from his sisters, Ms Barbara Chandler and Ms Deborah Hardy. They each express the profound sadness which they have experienced as a result of the death of Mr Matthews. The feelings which they so eloquently express and the grief which they have suffered are entirely understandable. It is quite impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of their statements. Clearly no sentence which any court could impose can ever begin to make good that loss. I extend to all of them my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226.